Murithi v Mururu (Environment and Land Appeal E023 of 2024) [2025] KEELC 7434 (KLR)
The bottom line
#The Environment and Land Court struck out a land appeal filed one day late without leave, confirming the original judgment stands and the appellant pays costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the subject appeal was filed timeously and in accordance with the provisions of section 79G of the Civil Procedure Act or otherwise
- 2.Whether the appellant established his claim pertaining to the suit property or otherwise
Key legal issues
#Timeliness of the appeal under section 79G Civil Procedure Act
The judgment was delivered on 27th September 2024; the last day for filing the appeal was 27th October 2024, but the memorandum of appeal was paid for and lodged on 28th October 2024, without leave; the appeal was therefore filed out of time and was a nullity ab initio, striking the court's jurisdiction
The court computed the 30-day period exclusive of the judgment date but inclusive of the last day, fixing the deadline at 27th October 2024. Counsel for the respondent showed, from the court tracking system and receipt No. RA-0245801, that fees were paid on 28th October 2024. Appellant's counsel remained mute and neither denied nor confirmed the payment date. Relying on Salat and Pentagon Communications, the court held the appeal statute-barred and void.
Whether the appellant proved ownership of plot No. 393 Kambi ya Juu
The appellant failed to prove ownership: he produced no letter of allotment, application for allotment, certified council minutes, approved part development plan, or title; the part development plan produced was unsigned and unapproved, hence invalid
As plaintiff, the appellant bore the burden of proving ownership on a balance of probabilities. His assertions of sole registered ownership remained allegations unsupported by documents underpinning allotment or entitlement. He was also evicted pursuant to an enforcement notice issued by the county government of Isiolo on 16th May 2014, whose validity was never impugned, so he had long been evicted when he filed suit.
Whether the appellant proved trespass/encroachment by the respondent
Trespass/encroachment was not proved: the appellant called no surveyor and tendered no survey report
The appellant contended the respondent encroached and merged his plot with hers in 2017. However, he called only four witnesses including himself, none of whom was a surveyor, and no survey report was produced. The trial magistrate's finding that no surveyor's report substantiated the claim of encroachment was therefore well-grounded and the trial court's conclusion was inevitable.
Duty of a first appellate court
A first appellate court must subject the entire evidence to fresh and exhaustive scrutiny, but may only depart from trial findings on defined grounds
The court, guided by Belgo Holdings and Peters v Sunday Post, restated that the first appellate court re-evaluates evidence and may draw its own conclusions, while bearing in mind it neither saw nor heard the witnesses, and will not disturb trial findings unless they rest on no evidence, are perverse, rest on misapprehension of evidence, or an error of principle.
Legal principles established
#- An appeal filed out of time without leave of the court is a nullity ab initio and deprives the court of jurisdiction to entertain it
- Pleadings filed before the court are only deemed as filed upon payment of court fees; the date of payment is critical
- A first appellate court may only depart from trial court findings where they are based on no evidence, are perverse, based on misapprehension of evidence, or an error of principle
- Absent a survey report, it is impossible to prove trespass or encroachment
Court orders
#- 1.The Appeal be and is hereby struck out
- 2.The Judgment delivered on 27th September 2024 and the consequential decree be and are hereby affirmed
- 3.Costs of the Appeal be and are hereby awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Resident Magistrate's Court (subordinate court), Isiolo
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction under sections 78 and 79G of the Civil Procedure Act; appeal canvassed by written submissions under Order 42 rule 13 of the Civil Procedure Rules, 2010
Relief refused
#Appeal allowed; impugned judgment set aside and judgment entered in favour of the appellant in terms of the Plaint dated 15th May 2017
The appeal was filed out of time without leave and was thus a nullity; and on merit the appellant failed to prove ownership of the suit plot and trespass/encroachment
Costs
Costs of the Appeal be and are hereby awarded to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Appeal be and is hereby struck out.
The Judgment delivered on 27th September 2024 and the consequential decree be and are hereby afirmed.
Costs of the Appeal be and are hereby awarded to the respondent.
No appeal should have been filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence.
Absent a survey report, it is dificult, nay impossible to prove trespass/encroachment.
Issues in the judgment
#The judgment inconsistently dates the county surveyor's report relied on by the appellant – variously 4th September 2019 and 10th/11th November 2021
Typographical errors in the disposition, e.g. 'The appeal courts being struck out' and 'the appeal courts dismissal'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murithi v Mururu (Environment and Land Appeal E023 of 2024) [2025] KEELC 7434 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7434/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.